Chabbila Roy v. State — 1983 DIGILAW 154 (CAL)

JUDGMENT 1. THIS Revisional application under section 401 read with section 482 of the Code of Criminal Procedure is directed against order dated 10.2.83 passed by the Sub-divisional Magistrate (Executive) Howrah Sardar in M. P. 1793 of 1982 : MC 332 of 1982. By the impugned order passed in a proceeding under section 133 Cr. PC the learned Magistrate has ordered "so I order under section 133 cr. PC that the opposite parties must remove the said Khatal along with its animals immediately that is by 17.2.83 failing which the O. C. Bally P. S. is directed to remove the said Khatal along with the animals in such a distance that the said nuisance is removed." The order quoted seems to have been, passed under section 142 of the Code. 2. OPPOSITE party No. 2 in the present proceedings filed in the Court of Sub-divisional Magistrate (Sardar) Howrah an application under section 133/142 of the code against the present petitioners and some others on 21. 9. 82. In the said petition it was alleged that he was the owner of the property situate at 5, Girish Ghosh road, Belur, P. S. Bally measuring about 20 cuttahs and the said land was situate in a crowded residential locality. It was alleged further that the opposite parties forcibly and illegally occupied the' said land and began to use the land as a Khatal keeping thereon a number of cows and buffaloes and started business in milk. Local people complained to the petitioner and requested him to arrange for removal of the khatal as they were put to physical discomfort arising from the user of the land as a khatal. It was alleged that the local people had informed the thana about the nuisance and health hazards caused by the location of a khatal on the land and there were occasions when the opposite parties were convicted under the provisions of the Cattle Trespass act. Apprehending injury and suffering to the local people and spread of epidemic disease on account of the existence of the khatal, the opposite party No. 2 made a prayer in the said petition for drawing up proceedings under section 133 Cr. Apprehending injury and suffering to the local people and spread of epidemic disease on account of the existence of the khatal, the opposite party No. 2 made a prayer in the said petition for drawing up proceedings under section 133 Cr. P. C. against the opposite parties and for passing an order restraining the petitioners from running the aforesaid khatal, keeping the buffaloes and cows on the disputed property and also for an order for removal of the khatal. Points to be noted are that the petition was not verified ; the petitioner was not examined in support of the petition nor any evidence was taken; nor documentary evidence was produced to show that local people ever complained about physical discomfort or apprehended injury to health to the local thana or that any of the petitioners was ever convicted under the cattle Trespass Act and finally there is no averment in the petition that the petitioner resided or carried on business on a place situate close to the disputed property and himself suffered any physical discomfort or apprehended any injury. The perusal of the petition conveys the impression that the petitioner being dispossessed from the land where the khatal was put up by the opposite party was interested in getting back possession of that land by having the khatal removed and for the above purpose he made a reference to the danger to public health. Upon the said petition the learned magistrate passed an order drawing up proceedings under section 133 Cr. P. C. and made a conditional order why the khatal would not be removed and directed the opposite parties to show cause by 30.9.82. Section 133 of the Code permits passing of a conditional order on the basis of a report of a Police Officer, In the instant case the conditional order just mentioned was not passed on any Police report still it appears from the order dated 29.11.82 that a police report was called for by the learned Magistrate. Seeing the police report the learned Magistrate came to know of complaints made by local people about bad smell emanating from the khatal and the likelihood of mosquito being bred causing health hazards. The learned Magistrate still called for a report from the Chairman of the Bally Municipality. Thereafter the order impugned was passed on 10.2.83. The report from the Commissioner Bally municipality was received in the meantime. The learned Magistrate still called for a report from the Chairman of the Bally Municipality. Thereafter the order impugned was passed on 10.2.83. The report from the Commissioner Bally municipality was received in the meantime. Mr. Moitra the learned advocate for the petitioners before this Court challenges the legality and correctness of the final order passed dated 10.2.83. In addition he challenges the correctness of the initial order dated 21.9.82. The notice served on the opposite party bearing date 1.10.82 appears to have been signed by the Executive Magistrate (Sadar) Howrah. It is urged that a District Magistrate or a sub-divisional magistrate or any other Executive Magistrates specially empowered in this behalf is only competent to pass an order under section 133 (1) of the Code and the notice on its face does not show that the Executive Magistrate signing the notice was specially empowered. This point is not taken serious note of as this point has not been taken in the revision petition rather it is admitted that the learned S. D. M. (Ex.)Howrah drew up the proceedings. 3. THE second point urged by Mr. Moitra is that the learned Magistrate passing the conditional order had no materials before him to pass the order. He points out that before passing the conditional order no report was received from any police officer regarding any health hazard at the place in question arising from the existence of a khatal. He proceeds on to argue that no information was received or called for from the Chairman of the Bally Municipality within local limits of whose jurisdiction the property is situate. He points out that in the petition itself there is no averment that the petitioner himself suffered any physical discomfort or apprehended any danger to health. Still the petitioner was not examined. No evidence was taken by the Magistrate to satisfy himself on this point. Mr. Moitra argues that the initial order is vitiated entirely by non-application of mind by the Magistrate. Mr. Roy the learned advocate for the opposite party contends that under section 133 (1), it is not obligatory for the Magistrate to take evidence and omission to accept evidence does not vitiate the conditional order. This argument has no substance. Mr. Moitra argues that the initial order is vitiated entirely by non-application of mind by the Magistrate. Mr. Roy the learned advocate for the opposite party contends that under section 133 (1), it is not obligatory for the Magistrate to take evidence and omission to accept evidence does not vitiate the conditional order. This argument has no substance. I have already mentioned the features of the petition and in view of those features it was proper'' for the Magistrate to examine the petitioner and to ascertain where he lived and if he himself suffered any physical discomfort on account of the existence of a khatal. The learned Magistrate should have borne in mind the difference between private nuisance and public nuisance/or health hazards of a community. It was for the learned Magistrate to satisfy himself that a large number of people were put to inconvenience and to satisfy himself on this point the learned Magistrate should have asked the petitioner to examine a few local people residing in the locality on the point. 4. FROM a reading of the petition under section 133 and the notice issued thereon it appears that the learned Magistrate considered the case to be one under section 133 (1) (b) namely, "that the conduct of any trade or occupation, or the keeping of any goods or merchandise, is injurious to the health or physical comfort of the community and that in consequence such trade or occupation should be prohibited or regulated or such goods or merchandise should be removed or the keeping thereof regulated". Mr. Moitra argues if the learned magistrate was satisfied that the case came under the above clause he should make a conditional order requiring the person causing such obstruction or nuisance, or carrying on such trade or occupation or keeping any such goods or merchandise or owning, possessing or controlling such building, tent, structure substance tank, well or excavation or owning or possessing such animal or tree, within a time to be fixed in the order". Mr. Moitra's contention is that the conditional order should require the person proceeded against to do something within the time to be fixed in the order. Mr. Moitra proceeds on to argue that if the case. Mr. Moitra's contention is that the conditional order should require the person proceeded against to do something within the time to be fixed in the order. Mr. Moitra proceeds on to argue that if the case. attracted clause (b) aforesaid the conditional order should have been passed in terms of clause (ii) that is to say requiring the person proceeded against "to desist from carrying on or to remove or regulated in such manner as may be directed, such trade or occupation or to remove such goods merchandise or to regulate the keeping thereof in such manner as may be directed. " Mr. Moitra argues that running of a khatal by itself is not injurious to public health and it has not been prohibited by any law. The running of a khatal may be injurious to public health if adequate steps are not taken for regular clearance of cow dung and garbage from the khatal in a scientific fashion. Mr. Moitra complains that there is neither such allegation in the petition nor there is any averment of the above nature in the notice served. He points out that no reference has been made to injury to health or physical comfort in the notice. He points out that the learned magistrate drew up the proceedings as he was satisfied that there was apprehension of breach of peace. Mr. Moitra contends that likelihood of breach of peace is not a relevant consideration for passing a conditional order under section 133. Mr. Moitra contends that it is arguable that in the gulf of a petition under section 133 neither an individual nor even the State can prevent a person from carrying a trade or business in respect of which a right has been guaranteed to him by the Constitution of India. However, Mr. Moitra in the present proceedings does not elaborately discuss this point he only argues that the proceedings under section 133 were not drawn up in consideration of injury to the health or physical discomfort likely to be caused to a large section of the local people. In this connection he also points out that his clients have been running the khatal for last 45 years. In this connection he contends that if the local people have become habituated to the conditions prevailing in the locality for so many years. In this connection he also points out that his clients have been running the khatal for last 45 years. In this connection he contends that if the local people have become habituated to the conditions prevailing in the locality for so many years. They cannot complain now on the plea of health hazards or nuisance. Mr. Moitra next contends that the conditional order did not require his clients to stop running of the khatal and remove catties therefrom by 15.10.82. His contention is that if there was a conditional order to the above effect in the proceedings, the said conditional order could be made absolute. He points out that the notice simply required his client to show cause only by 15.10.82. On examination of the notice the conclusion becomes inescapable that it does not embody the conditional order as contemplated under the section and has passed by the learned Magistrate. The conditional order is expected to require the person proceeded against to do something or abstain from doing something within a time to be fixed in the order or if he objects to do so to appear before the Magistrate issuing the order. The learned Magistrate in the instant case does not appear to have correctly drawn up the notice strictly in conformity with the provisions of law. Mr. Moitra, next points out that after the notice has been served in the manner indicated in Section 134 of the Code, the learned Magistrate could make the conditional order absolute in terms of section 136 if the opposite parties failed to comply with the conditional order or to appear and so caused against that order. In the instant case the opposite party filed a petition showing cause. 5. HE argues that although the petition showing cause is in the file there is no indication in the order sheet of the case that the learned Magistrate ever took into consideration the said petition. In this connection Mr. Moitra places before me the provisions of section 137 of the Code and contends that on the appearance before him the person proceeded against it was obligatory for the Magistrate to question the person proceeded against if he denied existence of any public right in respect of the place, as the present case was a case of danger to public health. In this connection Mr. Moitra refers to the case of M. M. Chawha Vs. In this connection Mr. Moitra refers to the case of M. M. Chawha Vs. Ashutosh Sasmal 79 CWN 485, pavithran Vs. Kanju Lochu 1982 CLJ 103. Mr. Moitra submits that for non-compliance of the provisions of section 137 (1) of the code the proceedings of the case subsequent to the initial order dated 21.9.82 have become illegal and absolutely void. He argues that provisions of section 137 (1)are mandatory. Mr. Moitra proceeds on to argue that if after questioning his clients as to the existence of the health hazards allegedly caused and knowingly about its denial the learned Magistrate should have proceeded to record the evidence as laid down in section 138 of the Act. Mr. moitra submits that the learned Magistrate should have explained the substance of the allegations made in the petition to the opposite parties in the manner the substance of acquisition is explained to the accused in a summons case under section 251 of the Code and proceed subsequent thereto under section 254 of the Code. He argues that the learned Magistrate was totally wrong in ignoring the provisions of section 137 and 138 of the instant case. Mr. Roy on behalf of the opposite parties refers to paragraph 10 of the show cause petition admitting the existence of the khatal for more than 45 years and argues that when the running of the khatal was admitted there was no question of recording evidence. This argument does not impress me. It is true that running of the khatal Is admitted in the show cause petition but from the said admission it does not follow that sufficient safeguards have not been taken for clearing out cow dung, garbage and other malodorous materials from the disputed place so that health of the local people were not exposed to any danger. Only exposures to the danger noticed above permitted a conditional order under section 133 (1) (b) of the Code and on this point detailed enquiry should have been made. 6. THE irregularities or illegalities do no end there as aforesaid. Only exposures to the danger noticed above permitted a conditional order under section 133 (1) (b) of the Code and on this point detailed enquiry should have been made. 6. THE irregularities or illegalities do no end there as aforesaid. Section 141 of the code contemplates making a conditional order absolute and the Magistrate, under the said Section 141, shall further require the person proceeded against to perform the act directed by the order within a time to be fixed in the notice and inform him that in case of disobedience he will be liable to penalty provided by section 188 of the Indian Penal Code. 1 have already indicated that the initial order dated 21.9.82 is on the face of the order a conditional order. If the said order was made absolute the learned Magistrate should have made it absolute under section 141 and give a notice of the said final order in the manner laid down in section 141 (1) of the Code. The learned Magistrate did not proceed that way. This is a grave illegality. The final order dated 10.2.83 can by no stretch of imagination be treated as an order of injunction passed under section 142 of the code. Section 142 contemplates making of an order of injunction and making of an order under section 133 when the Magistrate is satisfied that immediate measure should be taken to prevent eminent danger of injury of a serious kind to the public. Such an order can be passed simultaneously with the conditional order contemplated under section 133 (1) or soon after passing the conditional order but prior to making a final order under section 144 In the present case the learned Magistrate proceeded to pass the final order on 10.2.83 without following the procedure prescribed by section 141. From an examination of the record the conclusion becomes inescapable that not only the final order dated /10.2.83 impugned herein is illegal but also all the orders right from 21.9.82 are illegal and invariable with the express provisions of section 133. The entire proceedings are therefore liable to be quashed. In the result the application succeeds and is allowed on contest. The order dated 10.2.83 impugned herein is set aside and the entire proceeding in the instant case under section 133 Cr. P. C. are quashed. The entire proceedings are therefore liable to be quashed. In the result the application succeeds and is allowed on contest. The order dated 10.2.83 impugned herein is set aside and the entire proceeding in the instant case under section 133 Cr. P. C. are quashed. This will not preclude the opposite party from filing a fresh application under section 133 if they are so advised. Application allowed.